[Redacted], Jeannie T., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004255 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. Appeal No. 2021004255 Agency No. 2021-29056-MARAD-01 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 23, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as a Public Affairs Specialist, GS-12, in the Office of External Affairs at the Agency's U.S. Merchant Marine Academy Administration in Kings Point, New York. On May 20, 2021, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discrimination and/or harassment (non-sexual) based on sex and in reprisal for prior protected EEO activity (a 2012 EEO complaint settlement; participating in an Agency investigation published in 2017; initiation of an EEO complaint on June 24, 2019; and an August 2019 testimony given in an EEO investigation which resulted in a finding of discrimination dated January 11, 2021) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021004255 2 1. since approximately 2013, Complainant’s second level supervisor had subjected her to disrespectful and hostile treatment and emails on an ongoing and consistent basis because of Complainant’s participation in EEO activity; 2. management failed to take appropriate action after Complainant reported harassment by her second level supervisor on September 13, 2017, September 25, 2017, September 26, 2017, and October 31, 2017; 3. in 2014, management denied Complainant’s request for tuition reimbursement and repeatedly denied her request for a desk audit; 4. from approximately May 2014 to May 2018, Complainant was denied (i) interviews and selection into GS-14 positions for which she competed and was referred to the section official and (ii) compensation and recognition for performing GS-14 duties; 5. in July 2020, management denied Complainant’s request for tuition reimbursement; 6. since 2018, including on or about August 31, 2020, Complainant was denied a quality step increase; 7. in approximately October/November 2020, Complainant was not interviewed for the position Director of Professional Development and Career Services, GS 14, advertised under Vacancy Announcement No. MARAD-MMS-2020-0033, after her second level supervisor communicated negative information about her to impede her career prospects; 8. in August 2020, Complainant’s request to be trained as a sexual assault victim advocate was denied; 9. on unspecified dates, Complainant was not selected after being referred for consideration for the position Director of External Affairs, GS 14; 10. on or about April 5, 2021, Complainant learned that her first level supervisor discussed the instant complaint with an employee who shared details of the conversation with a third party, including an assertion that her supervisor was trying to get rid of her; and 11. on unspecified dates, the Agency did not honor Complainant’s request to involve her first level supervisor in the mediation of the instant complaint, and since the mediation of the instant complaint, her first level supervisor has treated her differently, including when on April 29, 2021 he excluded her from a series of meetings with MARAD Public Affairs. 2021004255 3 In its June 23, 2021 final decision, the Agency dismissed the formal complaint on multiple procedural grounds. First, the Agency dismissed allegations 1 through 9, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency found that Complainant initiated EEO Counselor contact on February 10, 2021, which it determined to be well beyond the 45-day limitation period. Second, the Agency dismissed allegations 1, 4, and 9, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant previously raised these claims in a prior complaint, Agency No. 2019-28211-MARAD-01, which were adjudicated by the Agency as well as the Commission on appeal. Finally, the Agency dismissed allegations 10 and 11, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant did not raise these claims before an EEO Counselor, and these claims were not like or related to the counseled issues. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claims (Allegations 1, 4, and 9) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed allegations 1, 4, and 9, for raising the same matter that was raised in a prior complaint (Agency No. 2019-28211-MARAD-01), which was subsequently adjudicated by the Commission (EEOC Appeal No. 2019004992). On appeal, Complainant does not dispute that she previously raised these allegations in another complaint. Specifically, Complainant states, she “voluntarily let [her prior complaint] expire.” Therefore, we affirm the Agency’s dismissal of allegations 1, 4, 9 as previously raised claims in a prior complaint. Claims Not Raised before EEO Counselor (Allegations 10 and 11) EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that the Agency shall dismiss a claiming that has not been brought to the attention of an EEO Counselor and is not like or related to the matter that has been brought to the attention of the EEO Counselor. A copy of the EEO Counselor’s report supports that Complainant did not raise allegations 10 and 11 during EEO counseling. Additionally, these claims are not like or related given that they do not clarify the other claims brought before the EEO Counselor. In the EEO Counselor’s report, Complainant only identifies her second level supervisor (S2) as the responsible management official and does not allege any claims against her first level supervisor (S1). 2021004255 4 Specifically, the EEO Counselor’s report states that “[Complainant] does not allege that [S1] subjected her to retaliation and does not want to involve him in this matter.” However, in claims 10 and 11, Complainant identifies S1 as the management official responsible for these alleged incidents. Consequently, these allegations are not like or related to the claims Complainant raised before the EEO Counselor. We find that the allegations concerning S1 are not sufficiently tied to Complainant’s allegation of ongoing harassment by S2. Therefore, we affirm the Agency’s dismissal of these allegations pursuant to 29 C.F.R. § 1614.107(a)(2). Untimely EEO Counselor Contact (Allegations 1 through 9) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. Complainant initiated EEO Counselor contact on February 10, 2021. Consequently, Complainant’s claim of ongoing harassment, incorporating allegations 1 through 9, must have occurred 45-days before Complainant initiated EEO Counselor contact, or by December 28, 2020,2 in order to be timely raised. The last allegation at issue, claim 9 (non-selection)3 occurred most recently, as stated in Complainant’s formal complaint, in October/November 2020 when she was determined to be qualified for the position and referred for consideration, but was never 2 Because 45-days before the initial EEO contact fell on Sunday, December 27, 2020, the last possible date for a timely claim was extended to the following business day, Monday, December 28, 2020. 3 Complainant stated in her affidavit that she was denied the opportunity to interview for the GS- 14, Director of Professional Development and Career Services position in October/November 2020. Complainant also stated in her affidavit that she confronted management in September 2017, regarding the reason she was denied an interview for the Director of External Affairs position. 2021004255 5 interviewed. Because this incident occurred before December 28, 2020, it was untimely raised with an EEO Counselor. However, Complainant asserts on appeal that she did not reasonably suspect that she was denied an interview and ultimately not selected for the position until January 2021. Specifically, Complainant asserts that on January 18, 2021, she read a copy of a final Agency decision finding indicating, in pertinent part, that S2 had subjected Complainant’s co-worker (CW1) to retaliatory harassment. Complainant further asserts that she participated as a witness in CW1’s complaint and she became aware that management, specifically S2, knew about her participation before she had applied for the position at issue because an investigation into CW1’s complaint occurred from May 22, 2019 and August 16, 2019. Despite her arguments to the contrary, our review of the record reflects that Complainant should have reasonably suspected that she has been discriminated against before January 2021. Complainant noted in her affidavit that she was identified as qualified and referred to the position as early as October/November 2019. Additionally, Complainant indicated that she previously had not been interviewed for another position and she questioned management in September 2017, regarding being denied an interview for another position. Moreover, Complainant has repeatedly identified S2 as the responsible management official for the relevant claims and noted that S2 was the selecting official for the position referenced in claim 9. Complainant has cited other instances where S2 was aware of her prior EEO activity before she became aware of the January 2021 final decision. Notably, Complainant has alleged a history of retaliatory harassment by S2 since 2013. Consequently, Complainant should have had a reasonable suspicion as early as October/November 2020 of retaliatory harassment by S2 because of this history, and because S2 was the selecting official for the position at issue. Complainant has alleged that she was subjected to discriminatory and retaliatory harassment. However, because the last alleged incident did not occur within the 45-day limitation period, the claims at issue cannot collectively constitute an actionable claim of harassment. Therefore, we affirm the Agency’s dismissal of Complainant’s claim on ongoing harassment (allegations 1 - 9) for untimely EEO Counselor contact. CONCLUSION The Agency’s final decision dismissing the formal complaint on the grounds discussed above is AFFIRMED. 2021004255 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021004255 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 29, 2021 Date